nationalsecuritylaw forthcoming scholarship

September 17, 2012

Networks in Noninternational Armed Conflicts: Crossing Borders and Defining ‘Organized Armed Group’

Peter Margulies

Roger Williams University School of Law
International Legal Studies, Vol. 89, 2012
Roger Williams Univ. Legal Studies Paper No. 125

Al Qaeda’s dispersal and the rise of regional terrorist groups such as al Shabab in Somalia have raised the stakes for defining an “organized armed group” (OAG). The law of armed conflict applies to violence between OAGs. If an entity fails the OAG test, a state may use only traditional law enforcement methods in responding to the entity’s violence. A narrow definition of OAG would thus undermine the United States’ reliance on targeted killings in states like Somalia that are remote from “hot” battlefields. That result might please human rights advocates, who critique targeted killing as posing an unacceptable risk of civilian casualties. However, constraining the United States and other nations could also give carte blanche to terrorist groups.

This paper argues that both case law and social science literature support a broadly pragmatic reading of the OAG definition. While the International Criminal Tribunal for the former Yugoslavia (ICTY) has cited factors such as existence of a headquarters and imposition of discipline, ICTY decisions have found organization when evidence was at best equivocal. Moreover, terrorist organizations reveal surprisingly robust indicia of organization. To deal with the agency costs generated by personnel with disparate agendas and backgrounds, terrorist groups monitor, assess, and document performance, even when this bureaucratic turn endangers the groups’ security.

A transnational network like al Qaeda operates in a synergistic fashion with regional groups. While al Qaeda does not micromanage most individual operations, it exercises strategic influence, e.g., through a focus on targeting Western interests. When such strategic influence can be shown, the definition of OAG is sufficiently flexible to permit targeting across borders.

"The International Protection of Journalists in Times of Armed Conflict and the Campaign for a Press Emblem"

Sydney Law School Research Paper No. 12/61

EMILY CRAWFORD, University of Sydney – Faculty of Law
Email: emily.crawford

War correspondents have long been vulnerable to violence, by dint of their profession. Embedded amongst military units, or else unilaterally venturing into war zones, journalists who seek to cover events in conflict areas knowingly place themselves at risk of injury or death by their acts. The Geneva Conventions and Additional Protocol I – both of which regulate international armed conflicts – offer some protections for journalists during times of international armed conflict, but the increasingly amorphous character of twenty-first century armed conflicts has meant that journalists most often find themselves reporting on non-international armed conflicts, or conflicts that do not meet the threshold of armed conflict under international law. Recently, an international campaign, emanating from journalist advocacy organizations, has argued for the introduction of an internationally protected and recognized emblem, similar to the Red Cross emblem, as a means by which journalists can be identified as persons deserving special protection. The Press Emblem would be part of a larger convention geared towards the protection of journalists in armed conflict situations. Therefore, this article will examine the reasons behind the call for special protections, analyze and examine the current legal protections for journalists, and the perceived deficiencies of those protections, for media personnel who operate in conflict zones. This article will examine the substance of the prototype convention for the protection of journalists and analyze whether such a convention is indeed a necessary and useful addition to the law of armed conflict.

"The Law of Cyber-Attack"

California Law Review, Vol. 100, No. 4, 2012
Yale Law & Economics Research Paper No. 453
Yale Law School, Public Law Working Paper No. 258

OONA A. HATHAWAY, Yale University – Law School
Email: oona.hathaway
REBECCA CROOTOF, affiliation not provided to SSRN
Email: RLCrootof
PHILIP LEVITZ, Yale Law School
Email: philip.levitz
HALEY NIX, affiliation not provided to SSRN
Email: haley.nix
AILEEN ELIZABETH NOWLAN, Yale University – Law School
Email: aileen.nowlan
WILLIAM PERDUE, affiliation not provided to SSRN
Email: wperdue88
JULIA SPIEGEL, affiliation not provided to SSRN

Cyber-attacks have become increasingly common in recent years. Capable of shutting down nuclear centrifuges, air defense systems, and electrical grids, cyber-attacks pose a serious threat to national security. As a result, some have suggested that cyber-attacks should be treated as acts of war. Yet the attacks look little like the armed attacks that the law of war has traditionally regulated. This Article examines how existing law may be applied — and adapted and amended — to meet the distinctive challenge posed by cyber-attacks. It begins by clarifying what cyber-attacks are and how they already are regulated by existing bodies of law, including the law of war, international treaties, and domestic criminal law. This review makes clear that existing law effectively addresses only a small fraction of potential cyber-attacks. The law of war, for example, provides a useful framework for only the very small number of cyber-attacks that amount to an armed attack or that take place in the context of an ongoing armed conflict. This Article concludes that a new, comprehensive legal framework at both the domestic and international levels is needed to more effectively address cyber-attacks. The United States could strengthen its domestic law by giving domestic criminal laws addressing cyber-attacks extra-territorial effect and by adopting limited, internationally permissible countermeasures to combat cyber-attacks that do not rise to the level of armed attacks or that do not take place during an ongoing armed conflict. Yet the challenge cannot be met by domestic reforms alone. International cooperation will be essential to a truly effective legal response. New international efforts to regulate cyber-attacks must begin with agreement on the problem — which means agreement on the definition of cyber-attack, cyber-crime, and cyber-warfare. This would form the foundation for greater international cooperation on information sharing, evidence collection, and criminal prosecution of those involved in cyber-attacks — in short, for a new international law of cyber-attack.

"Train Wreck: The U.S. Violation of the Chemical Weapons Convention"

Journal of National Security Law and Policy, Forthcoming
Georgetown Public Law Research Paper No. 12-128

DAVID A. KOPLOW, Georgetown University Law Center
Email: koplow

The 1993 Chemical Weapons Convention (CWC) is one of the most important multilateral arms control instruments; it requires its 188 parties to refrain from producing, acquiring, retaining or using chemical weapons (CW) and to destroy their existing CW stockpiles by a fixed date. The United States and Russia declared the possession of the world’s largest CW inventories and have been working assiduously to incinerate, chemically neutralize or otherwise dispose of their respective caches. Unfortunately, neither country met the treaty’s April 29, 2012 final, non-extendable deadline. The United States managed to destroy 90% of its CW stocks on time, but under current projections, it will not complete the process until 2023 – more than 11 years late.

This article examines the causes of that default and analyzes its legal and policy consequences. It concludes that the United States stands in material breach of the CWC; that none of the putative legal excuses or justifications is adequate to absolve the violation; and that other parties may have recourse to remedies under the CWC, under the Vienna Convention on the Law of Treaties, or under general international law. Moreover, it concludes that the striking U.S. diplomatic success in largely finessing this issue through the CWC’s treaty implementation bodies is misguided – although it has allowed the United States to escape censure or punishment in this instance, that accomplishment deserves the true long-run U.S. interest in insisting upon the importance of strict compliance with arms control treaties and in validating the rule of international law more generally.

"Section 7 of the Charter and National Security: Rights Protection and Proportionality versus Deference and Status"

Ottawa Law Review, Vol. 42, No. 3, p. 337, 2012

KENT ROACH, University of Toronto – Faculty of Law

This paper examines section 7 jurisprudence in the context of national security cases involving collective security considerations and/or Canada’s interactions with other states on security-related matters. National security, like section 7 of the Canadian Charter of Rights and Freedoms, spans the traditional divides between administrative, criminal, extradition and international law. The paper identifies two distinct strands in the jurisprudence: one associated with rights protection and a requirement that any limits on rights be justified as proportionate, and another based on an a priori deference to governments, consideration of the status of individuals — notably non-citizens — and respect for the sovereignty of other nations. The paper concludes that despite some post-9/11 attraction to deference and status concerns, rights protection and proportionality concerns may eventually win out, especially when supported by concerns about compliance with international human rights commitments and the reconciliation of rights protection with the fulfillment of various national security goals.